Stewart v. Rupf et al

Filing 4

ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 10/12/2010. (ndr, COURT STAFF) (Filed on 10/12/2010)

Stewart v. Rupf et al

Doc. 4

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. SHERIFF WARREN E. RUPF, et al., Defendants. / LORENZO STEWART, Plaintiff, No. C 10-02376 CW (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Plaintiff, a state prisoner, has filed a pro se complaint under 42 U.S.C. § 1983, alleging constitutional violations that occurred while he was housed at the Martinez Detention Facility. He has been granted leave to proceed in forma pauperis. Plaintiff

has not exhausted California's prison administrative process, however. The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. § 1997e to provide that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Under this

section, an action must be dismissed unless the prisoner exhausted his available administrative remedies before he filed suit, even if the prisoner fully exhausts while the suit is pending. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002). See "[T]he

PLRA's exhaustion requirement applies to all inmate suits about

Dockets.Justia.com

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prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

Exhaustion of all "available" remedies is mandatory; those remedies need not meet federal standards, nor must they be "plain, speedy and effective." & n.5 (2001). Id. at 524; Booth v. Churner, 532 U.S. 731, 739-40

Even when the prisoner seeks relief not available in

grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id. at 741. PLRA's exhaustion requirement

requires "proper exhaustion" of available administrative remedies. Woodford v. Ngo, 548 U.S. 81, 94 (2006). The purposes of the

exhaustion requirement include allowing the prison or jail to take responsive action, filtering out frivolous cases and creating an administrative record. See Porter, 534 U.S. at 525.

Section 1073 of Title 15 of the California Code of Regulations provides county jail inmates with a right to "appeal and have resolved grievances" relating to their confinement. Regs. tit. 15, § 1073. Non-exhaustion under § 1997e(a) is an affirmative defense which should be brought by defendants in an unenumerated motion to dismiss under Federal Rule of Civil Procedure 12(b). Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Wyatt v. Cal. Code

However, a complaint

may be dismissed by the court for failure to exhaust if a prisoner "conce[des] to nonexhaustion" and "no exception to exhaustion applies." Id. at 1120. Here, Plaintiff concedes he has not He alleges that he

exhausted his administrative remedies.

"submitted three complaints against staff misconduct" after the alleged incident involving the violation of his constitutional 2

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rights on March 2, 2010; however, he claims he has not yet received a response. (Compl. at 2.) Instead of waiting for a response to

his grievances, Plaintiff filed the present civil rights action on May 5, 2010. Plaintiff has not presented any extraordinary

circumstances which might permit him to be excused from complying with PLRA's exhaustion requirement. Cf. Booth, 532 U.S. at 741 n.6

(courts should not read "futility or other exceptions" into § 1997e(a)). Accordingly, the complaint is DISMISSED without prejudice to refiling after exhausting California's prison administrative process. See McKinney, 311 F.3d at 1199-1201.

The Clerk of the Court shall enter judgment in accordance with this Order, terminate all pending motions, and close the file. IT IS SO ORDERED. Dated:10/12/2010 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LORENZO STEWART, Plaintiff, v. WARREN E. RUPF et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV10-02376 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 12, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Lorenzo Stewart CC09BL509 Contra Costa County Jail Martinez 901 Court Street Martinez, CA 94553 Dated: October 12, 2010 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk

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